MEDIATION: IS IT OR ISNT IT THE WAY TO AVOID DIVORCE LITIGATION?

Many people feel that if they are going to get divorced they need to find a least adversarial way in order to resolve all the issues of the divorces such as Spousal support, Child support, and property division.  And thus recently there has been a push by many divorcees to go the that way.  However, issues have arisen that might be an impediment to an easy mediation, divorce free conflict amongst litigants going through a divorce.  Everyone believes and rightfully so that everything during the mediation process remains confidential and thus all agreements are set in stone. However, such is not the case.

A recent article from The National Law Review cited a recent case where the confidentiality provision of the medation agreement did not get signed.  Therefore the alleged agreement between the parties was not proven to be an agreement in the Court of Law.  As a result all the hard work and time and and effort put into paying a mediator and getting a divorce agreement done out of court was for nought.  This kind of situation can occur more likely than not if your mediator or the parties are not experienced at doing the mediation process.  In the case cited above the alleged agreement between the parties could not be show in the court of law because the parties never signed a waiver of confidentiality clause. Therefore the agreement could not hold weight nor was admissible in the Court of law.

In order for the mediation agreement to be a part of the Divorce proceedings the parties would have needed to sign a waiver of confidentiality which would then let the mediation document become admissible in a court of law.  Normally all mediations are confidential and therefore cannot be brought into the legal setting without a waiver of confidentiality signed by both parties.

This brings us to the next point that the above article inadvertantly brings attention to which is that mediations and the lack of settlements that might occur from going down  that road.  Unless both parties are committed to the process mediation will be a difficult road to go down.   often mediators claim they can settle any case or that they have a good track record. However, the problem remains if the parties are not engaged in the process or are unwilling to keep an open mind the process will not work.

This is the problem with the New Jersey case cited above.  The parties used the mediation process and one party thought they had an agreement and the other party did not.  Thus the agreement became null and void that was to alleged been agreed to during the mediation.  When one party attempted to offer the agreement as evidence of a settlement between the parties the New Jersey Court would not hear it. They stated that the agreement has no waiver of confidentiality signed by both parties.  Obviously this was a glaring error by omitted by the mediator at the time of the mediation.  One party benefited from the other partys lack of understanding of the mediation process.